One of the last defences for climate protesters who commit criminal damage has been in effect removed by the court of appeal. The court said the “beliefs and motivation” of a defendant do not constitute lawful excuse for causing damage to a property.
The defence that a person honestly believes the owner of a property would have consented had they known the full circumstances of climate change has been used successfully over the last year by protesters.
After an appeal by the attorney general, Victoria Prentis KC, based on a case brought against a defendant known as C, the court of appeal said “the political or philosophical beliefs” and the “reasoning and wider motivation” of the defendant were “too remote” from the criminal damage and did not constitute lawful excuse, and said evidence from defendants about the facts of climate change would be inadmissible.
Tom Little KC, acting for the attorney general, had told the appeal court judges that use of the so-called “consent” defence under the Criminal Damage Act 1971 was wrong and too broad an interpretation of the law. The defence, which relates to criminal damage only, involves a defendant arguing they had an honest belief that the owner of the property damaged would have consented if they had known the reasons why the action had been taken.
Henry Blaxland KC, for C, said it was a matter for a jury to decide whether a defendant honestly believed that the owner of a property would have consented to the damage caused.
“This is a matter for the jury,” said Blaxland. He told the court that to stop a defendant presenting the defence to jurors “would be a slippery slope to the erosion of the constitutional right to trial by jury”.
The lady chief justice of England and Wales, Sue Carr, said the court had to consider whether the circumstances of the damage included the merits, urgency or importance of any matter about which a defendant was protesting.
She said: “The court holds that the circumstances of the damage have to be linked directly to the damage. They might include, for example, the time, place and extent of the damage. In a protest case, they would include the fact that the damage was caused as part of a protest.
“But the circumstances would not include the political or philosophical beliefs of the person causing the damage. They would not include the reasoning or wider motivation of the defendant. Those matters are too remote from the damage.
“Evidence from the defendant about the facts or effects of climate change would be inadmissible.”
Tim Crosland, of Plan B said the Court of Appeal’s interpretation of the law was bizarre. “When will the legal profession and the judiciary wake up to what’s happening? It must be obvious to every serious observer that British law is being instrumentalised, on behalf of the fossil fuel industry, to silence and repress those taking action to confront the extreme danger from climate breakdown,” he said.
“If the urgent interventions from the UN and civil society organisations are not setting warning lights flashing, what will it take? With the established courts failing to discharge their basic function of protecting the British public from the abuse of power, it’s inevitable that others will step up.”
